Muhammad Shakeel Mehran v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 786/2018

[2020] HKCFI 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 786 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.The applicant is a 24-year-old national of Pakistan.  According to him, he departed his country on 8 May 2015 for Guangzhou, China.  He then came to Hong Kong unlawfully on about 11 May 2015 and was arrested by the police on 14 May 2015.  He lodged his non-refoulement claim on 17 May 2015.  He was subsequently released on recognizance pending the determination of his claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [7] of the Director’s decision and at [5] to [10] of the Board’s decision. In essence, the claim is based on the fear that, if refouled, he would be harmed or killed by the brothers of her girlfriend, Muna, in Pakistan.  Her brothers told him to stop seeing Muna.  As he still kept contacting Muna, he was assaulted by Muna’s brothers on two occasions.  They told him they would frame him with false charges or kill him if he did not stop seeing Muna.  He was later arrested by the police on the false charge that he had attacked Muna’s brothers.  His father bailed him out and he decided to leave Pakistan by using his own passport.

The Director’s Decision

4.By a notice of decision dated 15 August 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that his claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4]. The Director found that Muna’s brothers showed no real intention to cause any serious harm on the applicant or to kill him; and the injuries he sustained did not attain a minimum level of severity.  Moreover, the availability of state protection further lowers or negates his perceived level of risk.  Furthermore, internal relocation alternatives are available and reasonable, which further lowers or negates the perceived risk.  Therefore, it was not accepted that his fear was well-founded.

The Board’s Decision

5.The applicant lodged an appeal/ petition to the Board against the Director’s decision.  In his Notice of Appeal/Petition, he maintained that his life was in danger in Pakistan and that the Director had made the wrong decision.  Having read the papers of the case, the Board determined that an oral hearing was required and directed that an oral hearing was to be heard on 25 January 2018.  A notice of hearing by letter dated 20 December 2017 was served on the applicant by post at his last known address.  On 24 January 2018, an officer of the Board contacted the applicant by telephone and reminded him of the hearing at the Board’s offices in Immigration Tower, Wanchai.  The applicant confirmed his understanding and that he would attend the hearing as arranged.

6.On 25 January 2018, the applicant failed to attend the hearing.  The Board waited for about one hour but the applicant still failed to appear or contact the Board.  It then decided to hear and determine the appeal in the absence of the applicant.  By a letter dated 25 January 2018, the applicant was given written notice of the Board’s intention to determine the appeal in his absence informing him that he might submit to the Board within 7 days a written explanation for his failure to attend the hearing together with any documentary evidence supporting the explanation. 

7.On 31 January 2018, the Board received a letter from the applicant asking to have his hearing re-scheduled to another day.  He gave the reasons that he did not appear at the hearing because he did not know the way to the Board’s office and was late. 

8.The Board was of the view that: the applicant’s explanations were not “reasonable explanation” as he had been given notice of hearing about five weeks before the hearing; the notice provided clear particulars of the address that the hearing was to take place; he had been contacted the day before the hearing; and the Board waited for his appearance for approximately one hour but he did not appear or contact the Board.  In the circumstances, the claim that “he was late” as “he did not know the way” was not accepted by the Board as a reasonable explanation for his non-appearance [18].  The Board considered that the applicant had been given every opportunity to appear at a hearing to give evidence in support of his appeal.  Accordingly, the Board decided the appeal in the absence of an oral hearing.

9.By Decision dated 18 April 2018, the Board rejected the applicant’s appeal and confirmed the Director’s Decision. In considering the applicant’s claims, the Board said it had taken into account all of the information and evidence contained in the “Hearing bundle of documents”, including: the NCF; the record of the applicant’s interview with the immigration officer; the decision of the Director; and the applicant’s notice of appeal.

10.The Board’s main reason for rejecting the claim was that the applicant’s claims were “lacking in detail”. It commented that the applicant did not provide detailed information: regarding her relationship with Muna, about her brothers and the incidents when and where he was beaten up by her brother; about his arrest and detention by police; and whether he was charged with an offence.  Without more evidence from the applicant, the Board said it could not be satisfied about why he left Pakistan, or whether he cannot or will not return to Pakistan because of the feared harm there as he claimed.  It further stated in its decision [28-29] that if the applicant had attended the hearing, the Board would have had the opportunity to discuss his claims with him in more detail and test their veracity.  However, as the applicant did not attend the oral hearing, it was not possible to discuss any of the issues with him.  “In the circumstances, the Board has insufficient evidence to be satisfied that the events and circumstances he raised are factual, and on the evidence before it, does not accept his claims.” [29]. 

11.At [30], the Board continued with its conclusions: “For all of the above reasons, on the evidence before it, the Board is not prepared to and does not accept that the applicant’s claims are based on his actual experiences or events that actually occurred…it does not accept that he had a relationship with a young woman…or that the brothers or family of that young woman opposed their relationship and warned and threatened the applicant…Nor is it prepared to accept …that the police arrested and detained the applicant on the basis of a false claim.” 

12.For the reasons given, the Board did not accept that the applicant was forced to leave his home for the reasons claimed [31].  Accordingly, the Board was not satisfied that the applicant would face a substantial risk of harm if refouled.

Application for leave to apply for judicial review

13.The applicant filed a Form 86 for leave to apply for judicial review of the Board’s Decision.  He did not request an oral hearing. In his affirmation, he only said the decisions of the Director and the Board are not correct as “they have failed to consider the ground realities in Pakistan before reaching at their decisions”.

14.The grounds stated by the applicant are general and vague assertions, without any specific particulars as to how the Director or the Board were unfair or unreasonable in the public law sense.  Nevertheless, this court is still required to examine and scrutinize the Board’s decision to ascertain whether it made any errors of law, irrational decision and whether it analysed the appeal/ petition with a high standard of fairness.

Discussion

15.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

16.Though the applicant applied for judicial review against the decision of the Director as well as that of the Board, the Director’s decision is superseded by the Board’s decision and hence not amenable to judicial review: Moshsin Ali [2018] HKCA 549. There are no exceptional circumstances to justify a judicial review of the decision of the Director.  Therefore, the Court will only focus on the Board’s decision. 

17.In the present case, the Board rejected the applicant’s appeal/ petition on the ground that his claims were not credible because his claims were “lacking in detail in significant respects”.  The Board remarked that if the applicant had attended the hearing, it would have had the opportunity to discuss his claims with him in more detail and test their veracity, giving him opportunity to explain the particular details of his fear.  However, it was not possible to discuss these issues as he did not attend the hearing [28].

18.It may not be correct to say that it was not possible to discuss with the applicant, who indeed asked for a hearing to present his case after he failed to appear in the scheduled hearing.  It was only the Board refusing to discuss with the applicant as it did not accept the applicant’s explanations for his absence in the scheduled hearing as reasonable.

19.Two questions arose from the Board’s decision.  First, in all the circumstances of the case, whether the refusal to arrange a second hearing would be unduly harsh to amount to an unfair procedure.  There is no doubt that it is the duty of applicant to find his way to attend the oral hearing punctually.  The applicant claimed he was late as he did not know the way.  It may or may not be true.  The Board did not disbelieve his explanation but only said it was not a reasonable explanation.  It also did not expressly refute the suggestion that the applicant was only late.  The applicant requested another hearing only after a few days by his letter dated 29 January 2018. There was nothing to suggest that fixing another hearing would cause undue delay or that the applicant would not attend.  Indeed, the decision of the Board was only delivered until 18 April 2018.

20.As stated clearly by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, while there is no absolute right to an oral hearing, the question of whether an oral hearing should be afforded must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision in terms of its outcome and consequence, the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: per Cheung CJHC (as he then was) in paragraph 26 of his judgment for the court.

21.In applying this question in the context of torture claims, His Lordship then stated in paragraph 40:

“ …an adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standard of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim. For instance, if there is any point, factual or legal, that is troubling the adjudicator, which the adjudicator is not sure that an oral hearing or further submissions from the applicant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or (where appropriate) further written representations. An adjudicator simply cannot assume, no matter how good the legal representative of the torture claimant may be, that the legal representative (or for that matter, the torture claimant) would be able to foresee all the points that might be troubling the adjudicator after reading the petition and supporting material.”

And in paragraph 52 His Lordship also stated:

“It cannot be over emphasised that a desire to save time, trouble and expense cannot be a relevant consideration to not holding an oral hearing. That said, it does not follow that an oral hearing, if indicated, has to be lengthy. All that is required is a reasonable opportunity to be heard, and in terms of time, an oral hearing of a reasonable duration.”

22.Looking at the procedural history of the case, it appears to me that this was the first time the applicant was absent from hearing.  It has not been demonstrated that the applicant deliberately failed to attend the hearing or was intentionally delaying the process.  On the information available to the Court, it is reasonably arguable that the Board’s refusal to arrange another oral hearing for the applicant might be procedurally unfair.

23.The second question relates to the Board’s finding that the applicant’s claims were not credible because his claims were lacking in detail and it was not possible to discuss with the applicant.

24.In the present case, the applicant was initially offered an oral hearing which the Board found to be necessary to consider whether the claims were credible.  In its decision [21], the Board acknowledged that “the task of fact-finding often involves an assessment of an applicant’s credibility, particularly in a case such as the present where the only evidence before the Board is that of the applicant himself. ”(emphasis added)

25.I do not have the NCF and the record of interview with the immigration officer and therefore cannot appreciate how inadequate the particulars provided in these documents and interviews are.  However, the evidence of the applicant as to the primary facts of the alleged incidents appears to be unrefuted by any independent or objective evidence.  On the material before me, I fail to see why the applicant’s claims of events are inherently implausible or incredible simply because of the lack of particulars.

26.Indeed, the Director did not find the details of the applicant’s claimed incidents inadequate so that the claims were not credible. The Director appeared to accept the claimed incidents but he found that Muna’s brothers showed no real intention to cause any serious harm on the applicant and that the severity of the injuries sustained by the applicant did not attain a minimum level of severity. He further found that the nature and low intensity of ill-treatment from Muna’s brothers in the past is indicative of small future risk of serious harm on the applicant [13-14].  Moreover, State protection and internal relocation being viable and available to the applicant further lower or negate the perceived risk.  For these reasons, the Director found the non-refoulement claim unsubstantiated.

27.The Board did not explain why it came to findings of primary facts different from the Director when it was basically considering the same evidence before the Director.

28.Hence, it is reasonably arguable that the Board’s findings of fact, that the applicant’s claimed events were incredible, is unsupported by the evidence before the Board and internally inconsistent with its earlier observation that “the task of fact-finding often involves an assessment of an applicant’s credibility, particularly in a case such as the present where the only evidence before the Board is that of the applicant himself.”

29.It is true that even if the applicant’s claims of events are plausible, it does not necessarily follow that his claims of fear of harm will be substantiated. The Board could have, as the Director properly did in this case, proceeded to consider if there is sufficient state protection and whether re-location is a viable option, and then came to the essential decision as to whether the applicant’s claim of fear was substantiated and well founded.  Regrettably, the Board had not proceeded to consider these issues.

30.For the reasons given, I am of the view that the applicant does have reasonably arguable grounds based on procedural unfairness of the Board for not affording him another oral hearing and making findings of fact which are unsupported by evidence.  The threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung [2007] 10 HKCFAR 676 has been met.

Conclusion

31.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision based on the above grounds, and direct that he shall file an originating summons within 14 days, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 3^rd July 2020.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1